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Professional Employee Exemption The professional exemption actually encompasses two exemptions – one for “learned professionals” and one for “creative professionals.” To be an exempt “learned professional” an employee must have a primary duty that is the performance of work requiring knowledge of an advanced type – including the consistent exercise of discretion and judgment – in a field of science or learning where the advanced knowledge is acquired by a prolonged course of specialized intellectual instruction (examples include lawyers, doctors, architects, teachers, etc.). To meet the test for the creative professional exemption, an employee must have a primary duty that involves the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (examples include actors, musicians, novelists, etc.). Learned Professional Employee 1. Is the employee compensated on either a salary or fee basis at a rate not less than $600 per week? 2. Please describe the incumbent’s “primary duty”: 3. Does the incumbent’s primary duty involve the performance of work requiring advanced knowledge 10 in a field of science or learning that is customarily acquired by a prolonged course of specialized intellectual instruction 11 12 ? 4. Is the incumbent’s primary duty predominantly intellectual in character? If yes, please describe: 5. Does the incumbent’s primary duty require that his or her advanced knowledge be used to analyze, interpret, or make deductions from varying facts or circumstances? If yes, please give an example: 6. Does the incumbent’s primary duty include the consistent exercise of discretion and judgment? Creative Professional Employee 1. Is the employee compensated on either salary or fee basis at a rate not less than $600 per week? 2. Please describe the incumbent’s “primary duty”: 3. Does the incumbent’s primary duty involve the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor 13 ? YES YES NO If no, stop. The employee is not exempt. NO If no, stop. The employee is not exempt. http://www.csubfoundation.org/humanresources/documents/classify_compensate/<strong>FLSA</strong>_SHRM_Worksheet.pdf
End Notes 1 A job title alone is insufficient to establish the exempt status of an employee. Rather, the exempt or non-exempt status of any particular employee must be determined on the basis of whether the employee’s salary and duties meet the requirements of the regulations. It cannot be assumed that merely because one employee in a particular job classification is exempt, a second employee with a similar job title or even some of the same duties also is exempt. The decision must be made on a case-by-case basis. 2 The $600 minimum salary threshold for exempt workers is an absolute requirement, no matter whether the employee is full-time or part-time. Prorating the minimum salary figure ($600 per week) is not permitted for part-time employees or in job-sharing situations. In other words, a half-time employee who earns $400/week does not meet the salary basis test, even though the employee would earn $800/week were s/he to work full-time. 3 To determine whether an employee’s suggestions and recommendations are given “particular weight,” factors to be considered include, but are not limited to, whether it is part of the employee’s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon. 4 “Salary basis” means that the employee receives a pre-determined amount of compensation each pay period on a non-fluctuating basis. This predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. 5 “Primary duty” means the principal, main, major, or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of non-exempt work performed by the employee. 6 “Directly related to management or general business operations” refers to the type of work performed by the employee. In order to support the administrative exemption, the work must be related directly to the running or servicing of the university, as distinguished, for example, from working on a production line, selling in a retail establishment, etc. Types of work considered “directly related” include finance, purchasing, marketing, research, compliance, safety and health, human resources, etc. 7 The exercise of discretion and judgment involves the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The term must be applied in the light of all the facts involved in the employee’s particular employment situation, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision. The fact that an employee’s decisions may be revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment. In addition, exempt employees may use manuals, guidelines or other established procedures if they contain highly technical, scientific, legal, financial or other similarly complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skills. Discretion and independent judgment does not include following prescribed procedures or determining which procedures to follow, determining whether specified standards have been satisfied (even if there is some leeway), or applying established techniques or standards described in manuals or other sources to determine the correct response to an inquiry or set of circumstances. It also does not include clerical or secretarial work, recording or tabulating data, or performing mechanical, repetitive, recurrent or routine work. For example, an employee who enters, compiles, records, maintains, or tabulates data is not exempt as an administrative employee, even if they are called a “statistician”. 8 The term “matters of significance” refers to the level of importance or consequence of the work performed. An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly. Similarly, an employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance may cause serious financial loss. 9 The computer exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters, and others skilled in computer-aided design software) but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related exempt work are not exempt under the computer employee exemption (they may, however, be exempt under another category). 10 Learned professional work is distinguished from work involving routine mental, manual, mechanical or physical work. A learned professional employee uses advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level. An employee cannot be exempt as a learned professional unless the work requires knowledge of an advanced type. For example, it is not uncommon for someone trained as a lawyer to work as a paralegal while waiting to pass the bar exam. In such a case, the employee would not qualify for the exemption. http://www.csubfoundation.org/humanresources/documents/classify_compensate/<strong>FLSA</strong>_SHRM_Worksheet.pdf
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